Resigning is not enough

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Guest post by Paul Gilbert, director of LBC Wise Counsel

Gilbert: Institutional complacency

The captain then made her usual pre-flight announcement. As she handed over to the cabin-crew she told us that her colleagues “are here for your comfort, but mostly for your safety, please give your full attention to the safety demonstration, even if you are an experienced passenger”.

It is, in its way, the perfect purpose statement. The same message is given to each passenger at the same time and given by the person who we all recognise to be in overall charge.

The statement also makes explicit that, however much she expects the cabin-crew to make us feel comfortable, there is in fact only one true purpose – to manage our safety, especially in a crisis.

Over many years now I have contributed to the conversation about the role and purpose of in-house lawyers, but in the last few weeks the Post Office scandal has rocked me to my core and forced me to look again at what I have said. I have not done enough.

I have always been concerned that professional ethics is downplayed and placed somewhat ambiguously in a lawyer’s hierarchy of needs.

Being a good person who works hard and who tries their best is not the same as purposefully advocating for the resources, access and influence to ensure there is an effective ethical and governance infrastructure.

Being part of the inner circle and regarded more as a business partner than as a lawyer, for me is not a mark of success but a sure sign that ethical pressure will be harder to notice.

The safety valve in the debate, on both sides, has been that if anything really untoward happens, the lawyer can always resign. We all agree on this point, so the debate gets lively but is then allowed to cool in a cul-de-sac where nothing changes.

I do not believe we can let this continue. Now something must change because I do not believe resigning is enough.

In the Post Office scandal we know the following things:

• There was an aggressive contracting regime that placed the Post Office in an overbearingly powerful position to declare shortfalls as debts owed by colleagues.
• There was an aggressive prosecution strategy that created an environment of fear and isolation.
• There was a deliberate strategy to thwart independent investigation and to hide (and destroy) disclosable materials.
• We know therefore that the governance systems, policies and processes, and the people who managed governance oversight, were weak, incompetent and/or colluding in activity that resulted in the biggest miscarriage of justice in the UK, ever.
• This happened over many years. It was not a one-off event or a series of sad/bad coincidences. This was ethical failure on an epic scale.
• This was an abuse of power with the purpose of preserving a corporate reputation and the corporation’s value, even when lives were needlessly destroyed.

The chief executive, chairman and directors are responsible, but so are all who supported and encouraged their decisions, or who looked the other way.

Resigning is not enough.

People have died, families have been ripped apart, people have been made bankrupt and gone to prison for years, having done nothing wrong.

Resigning is not enough.

The duty of the general counsel is to act at all times in the best interests of their client, subject to the rule of law and the proper administration of justice. At its core, this is the equivalent of the captain’s pre-flight announcement.

If it were to be given by the chief executive it would be in these terms: “The general counsel and her team are here to ensure your deals are done, your contracts are fair and to help make your business decisions as seamless as possible; however, above all, the legal team are employed to be part of our governance framework and their first duty is the efficacy, legality and moral legitimacy of all that we do. Listen to everything they say and follow their guidance please.”

I also note that the captain’s announcement is made on EVERY flight without fail. It isn’t done once at the beginning of her career and after that we all hope for the best.

I do not see any urgency in the legal profession for general counsel to assert their primary purpose. Instead, we have legitimised an institutional complacency that seems to put commercial expediency first.

We have created environments where we have to be liked in order to thrive. We value relationships over making a difference, and all too often mental fatigue and burnout are an occupational hazard where the quality of decision-making may have been compromised.

My concern is not to punish, but that we learn. We operate unsafe systems and resigning is not enough. We all have to step up. This includes law firms, in-house teams, executive directors and non-executive directors.

We know that an emergency landing for any aircraft is thankfully rare. We know that the safety announcement is a little tired and many of us can tune out when we hear it; but deep inside we know that every flight is an endeavour that carries the risk of death and, for the airline industry the risk of catastrophic reputational harm.

The Post Office scandal is rare and awful, but lesser versions of it have happened before. ‘There but for the grace of God’ is not a strategy that is in any way good enough.

If we have any influence at all, and if we care about our colleagues and our profession, we need to reflect and learn.

I also believe we have a duty to every poor soul impacted by the Post Office scandal to be certain of our most important purpose, and that we have the captain’s unequivocal message of support announced routinely for all to hear.

Resigning is not enough.

This blog was first published on the LBC Wise Counsel website